The Justice John Hlophe Inquiry Papers: Going nowhere fast

Judge Hlophe can still, at least partially, redeem himself by taking the honourable route of figuratively falling on his sword. In this way he will spare himself, his friends, colleagues and the entire Bench much anguish and embarrassment in the future. If he chooses not to resign and to soldier on, he should rest assured that the issues which are raised in the matter are bigger than him, are more important for the nation and for the maintenance of the rule of law than he is, and that they are not going to go away any time soon.

The various complaints of gross misconduct and judicial incompetence laid against Judge John Hlophe, the Judge President of the Cape High Court, have so far come to almost nought.

First, a small but principled political party, the ACDP, complained in April 2006 about the receipt of money by Judge Hlophe from the Oasis Group, a purveyor of financial services and frequent litigant in his Court.

Then Adv Peter Hazell SC joined in the complaints during August 2006, considerably broadening the grounds upon which they are based. By way of two media statements released during October 2007, the Judicial Service Commission (JSC) let it be known, somewhat tersely, that, by a majority, it had decided that no formal hearing would be held because the “available evidence” did not amount to prima facie proof of gross misconduct.

It did not deal at all with the allegations of gross incompetence in either press release. On the contrary, in the latter it suggested that there were no complaints of gross incompetence. There were. It seemed as if the matter would end there with no more than a mild admonishment for some of the errors of his ways for the beleaguered Judge President. It hasn’t.

There was widespread dissatisfaction with the JSC’s opaque approach. Even the usually conservative Cape Bar Council commented critically on the methodology adopted by the JSC. Hazell SC promptly asked the JSC for reasons for the decision reached and for the documents containing the “available evidence” to be disclosed to him.

The JSC responded to these requests in March 2008 by taking up the ill-conceived attitude that it is not obliged to give any reasons beyond those few mentioned in its media statements. This it did on the legally questionable basis that its decision is not “administrative action” as defined in the Promotion of Administrative Justice Act. Just what the decision is, if it is not administrative action, it does not disclose.

As for documents, Hazell SC was somewhat begrudgingly accorded the privilege of insight into a selection of some 423 pages of documents (out of at least 515, if numbering on the pages made available is anything to go by) which were before the JSC committee which was seized of the complaints. He was refused insight into several categories of documents he asked to see.

A perusal of the documents now made public gives rise to more questions than answers. The thrust of Hazell SC’s complaints was centred on the alleged mendacity of Judge Hlophe. This topic is ignored or avoided by the JSC in all of the documents disclosed by it except, perhaps unwittingly, in its final media releases.

The ACDP’s original complaint includes the following question:

“4 Was any additional income received by the Judge President disclosed by him in his income tax returns?”

In other words, has there been transparency on the part of Judge Hlophe in his dealings with the tax-man? This is an important question, as tax evasion is a crime involving dishonesty. It was also perfectly legitimate for the ACDP to raise it and to expect to have it properly investigated and answered fully. No judge who commits a crime of this nature is competent to continue in office.

This is how the possibility of tax evasion is dealt with in the questioning of Judge Hlophe on 13 September 2006 by a special committee of the JSC consisting of President Howie, Judge President Ngoepe and Nthai SC .

Howie P: Did you declare it (the Oasis income)?

Hlophe JP: To the best of my knowledge Sir, my tax is up to date and I brought proof thereof…

Howie P: My question was, did what you declare include the remuneration from Oasis?

Hlophe JP: I don’t remember what was the arrangement between myself and Oasis with regard to tax in particular but I have not had any queries raised from the tax authorities.

Howie P: Would you just check, we don’t want tax details that don’t have anything to do with this. The question is simply whether the receipts from Oasis were declared.

Hlophe JP: Okay.

At a later stage in the proceedings, in an exchange between Ngoepe JP and Howie P (while Hlophe JP is not present) the former, apparently unaware that the recording equipment is faithfully doing its work, has the following to say:

“The reference to the tax returns… I don’t know where that is going to lead…that, which may be something else altogether… I was becoming quite uncomfortable about such direction because what if somebody hears that he has not disclosed that in his tax returns which means a criminal offence and really… ”

Howie P responds: “That is not a complaint.”

It is abundantly clear from paragraph 4 of the ACDP complaint set out above that possible tax evasion is indeed a complaint. The passages above show that Judge Hlophe has assiduously avoided directly answering the questions asked of him by President Howie and that the latter has been closed down on this line of questioning by an “uncomfortable” Judge President Ngoepe in their discussion during the proceedings on 13 September 2006, an edited version of which is set out above. To make matters considerably worse, it also emerges that Judge Hlophe used the vehicle of a trust, the TNG Trust, to accept receipt of the income from Oasis earned by him (he is not asked why) and that, in his own words, in a follow-up letter of 13 July 2007:

“My application for tax amnesty is currently pending before SARS with regard to some income, which was not timeously declared. I am currently awaiting the outcome of this application.”

On the record made available by the JSC absolutely no effort of any kind is made to investigate any of this startling information.

There is no “amnesty” available in respect of income not timeously declared. The income to which Judge Hlophe refers in the passage quoted above from his letter to the JSC is apparently his Oasis income.

It is perhaps speculation to suggest that the Oasis income was not declared until after its existence was made public by Noseweek. If the JSC had properly investigated the ACDP complaint about possible tax evasion, the need for such speculation would fall away. As matters stand, there is doubt as to whether or not the Judge President of the Cape is a tax evader, like Al Capone, and as to whether he only came clean when exposed by Noseweek. This is unacceptable. The questions asked by President Howie ought, in the public interest, to be properly and fully answered.

The so-called “application for tax amnesty” by Judge Hlophe, to which the JSC turned a blind eye, ought to be made public, so that the relevant timeline and nature of the income not timeously declared can be made known.

It can certainly not be his judicial salary, for this is subject to PAYE deductions at source. If it is other outside income, not from Oasis, the public is fully entitled to know about it and its origin. If it is Oasis income which was not declared until after publicity was accorded to the goings on between Judge Hlophe and Oasis, the inference of tax evasion becomes irresistible. This is especially so as the Oasis accounting records refer, erroneously, to receipt by the “Ting Trust” of the money earned by Judge Hlophe. On the available evidence, the question posed by the ACDP is still wide open, which is a most unsatisfactory outcome.

Quite apart from the tax implications of the receipt of monies from Oasis, it is by now notorious that, of his several contradictory excuses raised, Judge Hlophe now relies on advance oral permission given to him by Justice Minister Dullah Omar to receive R10,000 per month from Oasis.

This belated explanation requires rigorous interrogation, having regard to the manner in which it is raised. The records before the JSC, made available to it by Judge Desai’s senior counsel, reveal that along the way this was increased to R12,500 per month. This is what Judge Hlophe says about whether permission for the extra R2,500 per month was ever discussed with Omar:

“No, no I would be lying and there was one increase which was effected to bring it up I suppose in line with inflation and it stayed there for the next two years or so. He (Omar) didn’t know about that, no.”

It is thus clear that Judge Hlophe received R2,500 per month from Oasis for two years “or so” with no ministerial permission whatsoever. This is on his own admission. Yet there is supposedly no evidence justifying a formal enquiry and, according to the JSC “no evidence of absence of consent”. This is just plain wrong. The defence that the payments had the approval of Minister Omar ought to have been far more closely scrutinised.

The proposition that it is permissible at all that a judge receive money from a party who litigates before him, or even in courts supervised by him, is highly questionable. But even supposing that such permission is allowed in law and that it had been granted, by Judge Hlophe’s own admission permission was granted only for receipt of R10,000 per month. For all the JSC and Judge Hlophe know, R10,000 per month was the upper limit of income that Minister Omar was prepared to sanction.

As for Judge Hlophe’s permission given to Oasis to sue Judge Desai for defamation, after nearly three years of palm greasing, he protests:

“He (Judge Desai) knew about our friendship as well as my financial relationship with them (Oasis).”

The implication of this evidence is that Judge Hlophe did disclose his financial involvement with Oasis to Judge Desai, who he says introduced him to the directors of Oasis.

Without any countervailing evidence either from Judge Desai (whose own complaint against Judge Hlophe is tantalisingly referred to but is not disclosed in the dossier made available) or anyone else, the JSC “was unanimous in its view that it was inappropriate for the JP [Hlophe] to have given permission to Oasis to sue Judge Desai without disclosing his relationship with Oasis.” This is according to its media statement of 4 October 2007 and is repeated in the second such statement issued on 18 October 2007.

So, Judge Hlophe’s evidence was disbelieved by all 13 members of the JSC concerned in coming to this unanimous finding on a crucial issue. Yet he is still Judge President.

Although the JSC apparently did not have regard to the pleadings in the litigation between Oasis and Judge Desai, it is worth noting that a waiver by Judge Desai of the required permission from Judge Hlophe is pleaded there by Oasis.

Judge Hlophe would have given evidence for Oasis had it not withdrawn the case after holding up the JSC’s work for ages. This pleading is at odds with Judge Hlophe’s evidence that he did give permission in the presence of his deputy.

That he was disbelieved without being contradicted is a strong indication that the JSC unanimously regarded him to be mendacious. There is no other legal basis for rejecting his explanation quoted above.

His deputy, Judge Traverso, has publicly called him a liar and was, perhaps understandably, not required to give any input to the JSC. But mendacity is the thrust of the inexplicably rejected Hazell SC complaints.

Mendacious judges have no place in a constitutional democracy which functions under the rule of law. This is inconsistent with the unswerving integrity expected of all judicial officers.

One of Hazell SC’s complaints concerns the Greeff incident in which a young attorney was berated by Judge Hlophe and allegedly subjected to racist abuse by him. In its second October 2007 media statement the JSC says the following about the Greeff matter:

“The complainant and a possible witness in respect of the alleged racist insult informed the three Judges on the Commission that they did not wish the matter pursued. The Judge President (Hlophe) having denied the alleged remark, the Commission was left with a complaint without evidence to resolve it.”

This is not how these matters ought to work. The complainant is actually Hazell SC. He very much wishes to have the matter pursued. So much so that he alone was courageously and at great personal cost prepared to join in and add to the ACDP complaints.

The persons present when the alleged remark was made include a senior advocate, Dirk Uijs SC, who corroborates Greeff’s version. He was appointed an acting judge after he clashed with Judge Hlophe over the latter’s denial of the alleged racist insult. The problem which the JSC has attempted to avoid is that Judge Hlophe, if his denial is true, could hardly share his Bench with a perjured conspirator who has falsely accused him of racism. Yet he did.

It is legally irrelevant that witnesses do not wish the matter pursued. There are in any event two more witnesses, Judge Ndita and the public prosecutor who were both present at all relevant times. They are compellable witnesses in any formal inquiry as are the counsel and attorney concerned.

Neither of the latter two has ever contradicted the oaths they made contemporaneously, nor are they likely to if they wish to continue in good standing in their respective professions.

In any formal inquiry there would be the opportunity to take evidence from all four witnesses who were present when the Greeff incident occurred. To suggest, as the JSC does, that it is “without evidence to resolve” this complaint is simply untrue. There is overwhelming and highly probable evidence which contradicts the denial put up by Judge Hlophe.

In October 2005 then Acting Judge Ndita was interviewed by the JSC regarding her fitness for permanent appointment as a permanent judge of the Cape High Court.

During this process Chief Justice Langa prevented her from spilling any beans about the Greeff issue when she was asked about her experiences of racism while acting on the Cape Bench by Sheila Camerer MP.

But the nub of the complaint is not the racism as such, serious as this is, it is that it is inexcusable to lie about it on national prime time television news. If proved, this renders Judge Hlophe unfit for the high office he still holds.

The same faulty reasoning on the part of the JSC applies to the complaint concerning the bad-mouthing of Judge Thring at a Newlands cricket match.

The JSC explains patiently that “a Senior Advocate (actually Norman Arendse SC) who was initially claimed to be able to support this complaint tendered the Commission a statement which contained no such support. What the Judge President did admit was having discussed the allocation, without any disparagement, with another Senior Advocate (actually Geoff Budlender, a junior advocate at the Cape Bar).”

Judge Hlophe has denied this charge too. The JSC has unfortunately overlooked the fact that Arendse SC wrote to the then Chief Justice Arthur Chaskalson at the time of the incident to record his distress at being told by Judge Hlophe in front of a litigant MEC and the Premier of the Western Cape that the Mikro case had been allocated so that Judge Thring could “F*** it up, and it can be fixed on appeal.”

On the record, no attempt has been made to locate this letter, which ought to be on file in the office of the current Chief Justice. If it is not, either Justice Chaskalson or Arendse SC should disclose it without delay. As for Arendse SC not supporting the complaint, this is what his statement to the JSC actually contains:

“In my conversation with the Judge President…I did…enquire as to who was to preside…it was Judge Thring… Judges routinely pass remarks about their colleagues both good and not-so-good. Certain remarks were made to me by the Judge President which I construed to be of a private nature. I am not willing to disclose what the Judge President said to me in private conversation… I am no longer prepared to participate in any proceeding … unless I am by law compelled to do so.”

To characterize this as containing “no support” for the complaint of contempt of court is to stretch the credulity of any objective observer. All that Arendse SC is saying is that he won’t split on Judge Hlophe unless he is put in a witness box and compelled to do so. This is precisely what would happen if the matter were to be referred to a formal inquiry, as it long since should have been, with the greatest of respect to the JSC committee. Its own credibility finding against Judge Hlophe will come in handy to whoever cross-examines on the denial put up.

Judge Hlophe’s denial is furthermore so faint that it barely qualifies as one. He says:

“Arendse approached me and complained about the fact that I had allocated the matter to Judge Thring. I responded by saying something to the effect that if he was not happy with the outcome of the decision, he would have every right to appeal.”

Actually, there is no right to appeal, leave to do so, either from Judge Thring or failing him, from the Supreme Court of Appeal pursuant to a petition, is a requirement. In fact Judge Thring did give leave and his judgment was upheld on appeal in Bloemfontein.

This incident at the cricket is not the only contempt of court charge Hazell SC raises. The cavalier response of Judge Hlophe to being castigated by the Full Bench of the Supreme Court of Appeal in the Pharmaceutical case does not qualify for a mention in either media statement.

Nor is his bizarre behaviour concerning the application for leave to appeal in that matter dealt with in any way. The same applies to the attack on the propriety of Judge Hlophe’s infamous and now refuted report on racism of 22 November 2004.

Judge Hlophe continues to behave as if the Heads of Court have not found that his allegations of racism have been disproved by the victims of his report. They have so found.

The unfairly accused victims of Judge Hlophe’s baseless racism allegations have never been given any solace, either by the JSC, the Heads of Court or by their false accuser, Judge Hlophe. This in itself is a disgraceful state of affairs, especially as eminent judges and silks are involved. The pusillanimous attitude of the leadership of the Bench leaves much to be desired.

Perhaps the most perturbing aspect of Judge Hlophe’s conduct is that the structure of his entire relationship with Oasis and the manner of his giving it leave to sue his colleague Judge Desai after almost three years of being nagged to do so, all the while receiving increasing amounts from Oasis, is redolent of the possibility of criminality.

It is noteworthy that when first taken to task about the relationship, Judge Hlophe does not even mention the oral ministerial permission he now relies on.

It is the unenviable work of the Directorate of Special Operations, or Scorpions as they are popularly known, to delve into the record now made available, compare it with the record and discovered documents in the Desai defamation case and check the facts and tax files for evidence of tax evasion and corruption.

It is most regrettable that the JSC has hitherto not been better able to discharge its constitutional duty in this matter. It is humbly suggested that the JSC can still redeem itself, by taking a closer look at the record, by reconsidering the patent errors made in its media statements, of which there are more than those set out here, and by correcting the position with a fully reasoned and hopefully unanimous decision which justifies, with reasons, not mere conclusions, either the holding of a proper formal inquiry or the closure of the matter.

Whether or not any possible inquiry leads to an impeachment is not the issue. Openness, transparency and responsiveness to the needs of the people must be served. The independence and integrity of the entire Bench must be upheld.

This is a matter in which opacity and misplaced loyalty to a colleague have no place. As matters stand, the JSC would be in an untenable position in any review proceedings which may be launched against its decision in the matter

Finally, spare a thought for Judge Hlophe. In many ways he is the victim of this entire unedifying episode. He is the victim of the over-enthusiastic application of affirmative action policies aimed at transforming the judiciary, and living proof of the perils which arise when the old adage that it takes 20 years to get 20 years of experience is ignored.

He still, even now, does not have 20 years of practical legal experience. Promoted too far and too fast for his own good, he has struggled to fill the shoes of his illustrious predecessors adequately and has failed.

His academic record speaks of a huge talent and much potential. Neither has been realized. His lot in life can not be a happy one. He knows that everybody assumes that he is what his deputy calls him, a liar. It can’t be easy to carry on as a judge in such circumstances.

There are lessons to be learned from this. Lessons applicable to the core function of the JSC, which is the selection of judges for appointment.

One is that there is no substitute for experience in the hard world of litigious activity in which greed, anger and stupidity have to be skilfully managed by the Bench, the Bar and the Attorneys profession.

Another is that all candidates for the judiciary ought to be subjected to scientific psycho-metric testing in order to determine objectively their fitness for the high office to which they aspire. Only those who pass muster in this vital respect should be subjected to the careful sifting processes and tender mercies of the JSC.

Judge Hlophe can still, at least partially, redeem himself by taking the honourable route of figuratively falling on his sword.

In this way he will spare himself, his friends, colleagues and the entire Bench much anguish and embarrassment in the future. If he chooses not to resign and to soldier on, he should rest assured that the issues which are raised in the matter are bigger than him, are more important for the nation and for the maintenance of the rule of law than he is, and that they are not going to go away any time soon. DM

Opinion editorial by Paul Hoffman published in the Daily Maverick on 8 August 2018.